Agreement & Spousal Support

[Dee1973]

We have been working together to come to an Agreement specifically in regards to Custody, Access and Support.

There are 2 children, we were married 8 years and separated (but living in the same house) for 1 year. We finally agreed to shared custody with table offset amount.

Then she says that she wants spousal support and I'm floored, considering she's professionally employed, never a stay at home mom, employed the entire duration of our marriage, healthy, no real need, just asking because she thinks she can get. So what I wondering:

1. If the incomes are $74,000 / $107,500 and I'm paying table offset Child Support. Is Spousal Support likely or even reasonable?
2. If so, how would the amount be determined? I didn't see a table calculation like the one for Child Support?
3. Again if so, how long would any amount be payable for considering 8 year marriage?
4. If Spousal Support becomes a contentious issue - should I just remove the waiver clauses from the agreement and leave it to the stuff we do agree on i.e. Child Custody, Access, and Support. And say SS not within scope of this agreement to be determined later?
5. Separate comment - in a shared 50 / 50 custody arrangement she wants me to state that "Primary Residence" is with her. Considering custody is 50 / 50 I don't understand why she is adamate about this wording being include. Can anyone tell me what her angle is???

Thanks in advance for any insight!

[billm]

Well she certainly does not deserve spousal support - that deal is done!

Wow, what a greedy person - wasn't sharing your greater income with her for 8 years enough??

If you have 50/50, what could it possibly mean to have a 'primary' residence - it is against the whole concept of 50/50.

Do not allow the use of the word primary - it is discriminatory, you are both equal. If she believes it is necessary (which it is not), then you can agree that your home be designated primary.

On a practical note however, it may make sense to make one house the 'official' address of the kids for documents such as passports etc - it should be clear which house would make more sense. If not - flip a coin.

For example, my agreement (not signed!) states that neither is primary BUT if it necessary that my house shall be used. The reason being that I bought the matrimonial home and will stay there until the kids are grown - seems to make sense that my house be used if necessary.

Here is the wording in my proposed SA that I wrote:

The Husband and Wife agree that they are equal parents to the children and that neither shall be designated the primary parent, or any similar title. The Husband and Wife agree that they will not support any attempt to designate either as the primary parent, or any attempt to make a distinction between the Husband and Wife with respect to status as a parent.

and

The Husband and Wife agree if a primary or legal residence is required to be named for the children, it will be the home of the Husband as currently this has been a home for the children for the longest time. If possible however, no distinction will be made between the two homes the children live in with respect to designation or significance.

[Dee1973]

Thanks Bill, agree with all your points but when you say "Well she certainly does not deserve spousal support - that deal is done!".

Can you expand on what you mean? Are they specific legal argument / guidelines that I would use to support that there is no entitlement for Spousal Support. Just looking for something more tangible.

[OrleansLawyer]

1. If the incomes are $74,000 / $107,500 and I'm paying table offset Child Support. Is Spousal Support likely or even reasonable?

A more important question is whether there are grounds for spousal support; it is not an automatic right. If she has not suffered a disadvantage from the relationship and she is not in need then she would be hard pressed for forward a successful claim for spousal support.

2. If so, how would the amount be determined? I didn't see a table calculation like the one for Child Support?

There are table amounts, but they are rules of thumb and include high and low amounts. As an aside, if you are both living in the same home then there would be no child support to pay - since you are both supporting the children in the home.

3. Again if so, how long would any amount be payable for considering 8 year marriage?

Dependent on the age of the parties and duration of the relationship. If you don't run into "indefinite" territory, a general idea is 50-100% the duration of the relationship; or in your case, 4-8 years.

4. If Spousal Support becomes a contentious issue - should I just remove the waiver clauses from the agreement and leave it to the stuff we do agree on i.e. Child Custody, Access, and Support. And say SS not within scope of this agreement to be determined later?

I would speak to a lawyer about it, with consideration of your personal facts. If she is unlikely to get spousal support then, while you open yourself up to liability in the event her circumstances change, conversely you could end up never paying because she cannot succeed at court.

5. Separate comment - in a shared 50 / 50 custody arrangement she wants me to state that "Primary Residence" is with her. Considering custody is 50 / 50 I don't understand why she is adamate about this wording being include. Can anyone tell me what her angle is?

Custody and access are separate issues. You can have joint custody with the children spending more time with the other parent. The parent with the greater access has "primary residence" of the children since that is their home, while they visit the other parents.

Having it acknowledged that she has primary residence may be part of a strategy to gain greater access - or else to imply you should be paying guideline support without her offsetting it. Or it may be a vanity point. In any event, it is factually false based on what you have said and should be opposed vehemently to avoid prejudicing yourself in the future.

[HammerDad]

<TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD style="BORDER-BOTTOM: black 1px solid" width="70%">

Parties
</TD><TD style="BORDER-BOTTOM: black 1px solid; TEXT-ALIGN: right" width="15%">Self</TD><TD style="BORDER-BOTTOM: black 1px solid; TEXT-ALIGN: right" width="15%">Spouse</TD></TR><TR><TD>Age</TD><TD align=right>35 years</TD><TD align=right>33 years</TD></TR><TR><TD>Annual Gross Employment Income </TD><TD align=right>$107,500</TD><TD align=right>$74,000</TD></TR></TBODY></TABLE><TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD width="70%">Province </TD><TD width="15%" align=right>ON</TD><TD width="15%" align=right>ON</TD></TR></TBODY></TABLE><TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD style="BORDER-TOP: gray 1px solid">Date of Marriage or Pre-marital Cohabitation</TD><TD style="BORDER-TOP: gray 1px solid" align=right>January 1, 2004</TD></TR><TR><TD>Date of Separation</TD><TD align=right>January 1, 2012</TD></TR><TR><TD style="BORDER-TOP: gray 1px solid">Length of Marriage (including period of pre-marital cohabitation)</TD><TD style="BORDER-TOP: gray 1px solid" align=right>8 years</TD></TR></TBODY></TABLE><TABLE style="MARGIN-TOP: 15px" border=0 cellSpacing=0 width="100%"><TBODY><TR><TD style="BORDER-BOTTOM: black 1px solid" width="40%">Children</TD><TD style="BORDER-BOTTOM: black 1px solid" width="20%" align=center>Current Age</TD><TD style="BORDER-BOTTOM: black 1px solid" width="40%" align=right>Lives With </TD></TR></TBODY></TABLE><TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD width="40%">Child 1</TD><TD width="20%" align=center>6 years</TD><TD width="40%" align=right>Shared</TD></TR><TR><TD width="40%">Child 2</TD><TD width="20%" align=center>4 years</TD><TD width="40%" align=right>Shared</TD></TR></TBODY></TABLE>
Child Support - CSG Table Amount
Self pays Spouse child support of $416 per month, as a starting point subject to further adjustments, according to the Child Support Guidelines ("CSG").
Child Support - CSG Special Expenses
In addition to the CSG Table Amount above, the parties must both contribute to the children’s Special Expenses (eg. child care, medical expenses, extraordinary educational expenses, post-secondary expenses, and extraordinary extra-curricular activities), if any. The amount of each party’s contribution depends on a comparison of the parties' incomes; the party with more income will pay a larger share of the Special Expenses.
Spousal Support- SSAG
If entitlement to spousal support is established, in addition to any child support to be paid by either party above, Self pays Spouse spousal support in an amount to be determined between $0 and $450 per month (with a midpoint of $0 per month) for a period to be determined between 4 to 14 years from the date of separation, according to the Spousal Support Advisory Guidelines ("SSAG") - "With Child Support" Formula.
Monthly payments of spousal support are taxable to the recipient and tax deductible to the payor, if made pursuant to a written separation agreement or court order.

The above is a calculation I did using your numbers on this site:

MySupportCalculator.ca

Those are some basic number you may be looking at.

As for Billm's statement of not even getting into SS, it is likely because, given what you've said, she doesn't have an argument for entitlement. Her income is in the 40% realm of net family income. She hasn't sacrificed her career for the betterment of the family (or so you say, but her argument would be stronger if she past over promotions because they may have interferred with the family).

That is the start. She must prove entitlement in two ways. That she sacrificed and that her income needs supplementation.

[billm]

Thanks Bill, agree with all your points but when you say "Well she certainly does not deserve spousal support - that deal is done!".

Can you expand on what you mean? Are they specific legal argument / guidelines that I would use to support that there is no entitlement for Spousal Support. Just looking for something more tangible.

I'm not sure what the courts would say, I would just be guessing based on what I've read here.

More of an opinion.

By 'deal is done' I meant that income sharing that went with marriage is done as the marriage done.

SSAG is roughly implemented here

MySupportCalculator.ca

[Dee1973]

Thank you all, you have as usual clearly and quickly provided me incredibly useful insight.

So will oppose Primary Residence as it flies in the face of 50 / 50 custody. Or like OrleansLawyer put it "In any event, it is factually false based on what you have said and should be opposed vehemently to avoid prejudicing yourself in the future".

She has suffered not disadvantage from the relationship actually quite the opposite. Just greed and an "I want" attitude. My concern is that she will use this to stall the Custody Agreement.

Hammerdad - you said "Her income is in the 40% realm of net family income."

1. How did you come up with the 40%?
2. Why is this important?

[FightingForFamily]

Agreed with other posters. Her entitlement seems questionable, and IF she is entitled the amount is tiny.

[HammerDad]

Hammerdad - you said "Her income is in the 40% realm of net family income."

1. How did you come up with the 40%?
2. Why is this important?

I came up with number as follows:

74,000 + $107,500 = 181,500

74000/181500 = 40.77%

The 40% threshold is important for determining entitlement. What being above 40% essentially means is their income isn't that fair off your income, so their need to be supported isn't all that significant as their income was a large portion of the net family income.

And her income above isn't including any monies they receive in the form of C/S which should be taken into consideration in the calculation.

[FightingForFamily]

The SSAG works (very roughly) as follows:

Find the total income for the family ($170k or so for yours)
Take away child support of both parties
Take away any other family/child related expenses (life/health/dental insurance premiums for example)

The recipient should get around 46% of the income that remains and the payor the rest.

Assuming 170k - 20k for child support and family expenses = 150k, she should have $69k which she already has. So, net of zero.

[Teenwolf]

Some good advice here; however, a little more on SS.

SS entitlement is based on one of three things:

1. Contractual - Such as outlined in a domestic contract
2. Compensatory - She sacrificed her career for the family and was disadvantaged
3. Non-compensatory - She has a need for SS and you have the ability to pay

Based on what you have said here, I don't believe she would be entitled.

[Canadaguy]

Like everyone else said, SS is all about entitlement. She must prove this and demanding you pay SS with no proof of entitlement will not work. Stick to your guns and if she pushes SS kindly ask her to provide factual evidence why she believes she is entitled to it on what grounds she sacrificed her career, lifestyle for the relationship/kids.

By labeling one parent as primary/residency, it creates a power/control imbalance over the decisions in the childs life. Joint custody is all about agreeing. If you can't agree on something (eg: what school the kids go to) then a judge will decide. In joint, it could go either way. But if one parent has primary parent/residency the deck would be stacked in their favour for a judge to decide.

[Dee1973]

Thank you HammerDad and FightingForFamily - calculation methodology makes complete sense now. Yes so answer is net zero! Now that tough part convincing her of that - get her away from greed and "I want, I want". Geez, I have to live too right?

Don't understand how they can be so unreasonable and difficult at every turn!!

[Dee1973]

Yes some very good advice - Canadaguy, you are bang on Primary residency is about power and control, but also having another look at Orleans Lawyers reply just noticed this "else to imply you should be paying guideline support without her offsetting it."

Wow - I can't even imagine having 50 / 50% custody but paying full frieght child support rather then an offset. Didn't even think this was an option. Geez everything is always about power and money - so definitely going to stick to my guns on this one - no primary residency status.

[Canadaguy]

Remind her that you are equal parents and have been since the children have been born and that just because you are split now that will not change. Now that you have split the children will have two homes.

Is it your goal to live in the same school district as the kids? If both parents do this it makes it easy for the children to have dual residency.

It is unlikely a judge would inforce full CS on a 50/50 schedule.

Remember will be an up hill battle and in family law the deck is stacked in her favour but with proper planning and documentation you can achieve what is best for your situation.